There is often confusion about whether one can refuse to give a breath sample by taking a breathalyzer test without consequences. Some people say that one can refuse, while others say that you cannot. This is because there are two kinds of breathalyzers that are encountered during a DWI arrest.

The first is a field test breathalyzer, which is known as the AlcoSensor. This breathalyzer is not as reliable as an evidentiary breathalyzer and the blood alcohol content level readout on this machine cannot be used as evidence against you in court. This test is merely to determine if you have a positive or negative alcohol reading and whether the officer can arrest you. This test may be refused without consequences. However, when the officer brings you down to the station, there is another breathalyzer, the Intoxilyzer 5000, which is what is called an “evidentiary breathalyzer.” The evidentiary breathalyzer is much more accurate and the blood alcohol content readout of this machine can be entered into evidence against a defendant. This is the breathalyzer test this article is concerned about and has severe consequences attached to refusal to submit to the testing.

What happens when I refuse the Intoxilyzer 5000?

The most important consequence for refusing the Intoxilyzer test is that your license will be suspended for 12 months. Normally, this suspension is automatic. However, you can request a Willful Refusal Hearing to contest this automatic suspension. You must request this hearing very quickly – within 10 days of the court’s order of revocation being mailed. In many states, the offense of refusing to submit to the breathalyzer test is separate from the underlying DWI offense. In North Carolina, however, if the underlying DWI charge is dismissed, the license suspension can also be dismissed at the Willful Refusal Hearing.

In addition to the automatic suspension of your license, the refusal to submit to an Intoxilyzer can be used as evidence against you in the DWI trial itself as evidence of impairment. This means that not only can you get punished for refusing to submit to the breathalyzer, but that very refusal can help prove the DWI conviction. Rarely is it ever “worth it” to refuse the evidentiary breathalyzer test, as the consequences of refusal will just compound what will happen with a conviction. Only in rare circumstances should a defendant refuse the breathalyzer test in order to minimize legal consequences against him.

What should I do if I am charged with DWI?

If you face an implied consent charge, such as DWI, you do not have to face these charges alone. There are experienced attorneys who can help guide you through these often complicated court proceedings and make your legal case as effective as possible. Every case is unique and there are often particular procedural facts that may be advantageous to your case. An experienced DWI attorney can often help minimize or eliminate the consequences associated with a DWI charge. If you or someone you care about has been charged with a DWI, consult with a DWI attorney in order to explore the options that are available in your particular circumstances.